Opinion
DOCKET NO. A-3518-13T2
04-22-2015
HIROSHI L. POWELL, Plaintiff-Appellant, v. KATHERINE F. GORSKI, Defendant-Respondent.
Weinberger Law Group, LLC, attorneys for appellant (Jessica Ragno Sprague, on the brief). Respondent has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and St. John. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FD-18-876-94. Weinberger Law Group, LLC, attorneys for appellant (Jessica Ragno Sprague, on the brief). Respondent has not filed a brief. PER CURIAM
Plaintiff Hiroshi L. Powell appeals from a February 24, 2014 Family Part order addressing issues raised in the parties' cross-motions, in which plaintiff sought to emancipate the parties' then twenty-two-year-old child upon college graduation, and defendant Katherine F. Gorski sought retroactive contribution for past college costs and continued payment of child support because the child was attending graduate school. The judge denied defendant's cross-motion without prejudice because she failed to include requisite supporting documentation. Further, the judge denied plaintiff's request for emancipation without prejudice "[g]iven the existence of disputed issues of material fact." Rather than scheduling an evidential hearing, the judge "encouraged [the parties] to mediate their disagreements" because "future litigation would not appear to be in the interests of either party."
On appeal, plaintiff argues he presented a prima facie case of emancipation, which was unrebutted by defendant's claims of graduate school study, as the child was taking only nine credits. Plaintiff maintains the judge erroneously ignored the evidence and, alternatively, if materially disputed issues were present, a plenary hearing should have been conducted. We agree.
"Emancipation -- the conclusion of the fundamental dependent relationship between parent and child -- is not a self-executing principle." Dolce v. Dolce, 383 N.J. Super. 11, 17 (App. Div. 2006). Emancipation does not simply occur by reason of the dependent child reaching the age of majority, now eighteen, and in fact, "need not occur at any particular age . . . ." Newburgh v. Arrigo, 88 N.J. 529, 543 (1982).
The issue of whether a child is emancipated is fact-sensitive. "[T]he essential inquiry is whether the child has moved 'beyond the sphere of influence and responsibility exercised by a parent and obtains an independent status of his or her own.'" Filippone v. Lee, 304 N.J. Super. 301, 308 (App. Div. 1997) (quoting Bishop v. Bishop, 287 N.J. Super. 593, 598 (Ch. Div. 1995)). When a child reaches the age of eighteen, there is a rebuttable presumption of emancipation. Newburgh, supra, 88 N.J. at 543. See also Dolce, supra, 383 N.J. Super. at 17. This presumption may be overcome by evidence that a dependent relationship continues because of the needs of the child. Dolce, supra, 383 N.J. Super. at 18.
Here, the undisputed facts include the child was age twenty-two, had graduated from college, was working as a college athletic trainer, and was taking nine credits of graduate classes. Contrary to defendant's position, the child was not a full-time student, and no additional facts were presented that would warrant consideration of his need for continued support. Therefore, we do not find disputed material facts necessitating a plenary hearing. In light of the undisputed evidence, emancipation should have been ordered. The judge's finding and conclusion to the contrary were erroneous.
We also comment on the procedure employed here. We have previously noted "[t]he business of the courts is to finalize disputes." Parish v. Parish, 412 N.J. Super. 39, 54 (App. Div. 2010). When parties properly file actions seeking review and determination, and the case is presented for disposition, the matters should not be redirected, but determined. Despite the judge's salutary motive in urging the parties' settlement, they have the right to final review of their contest. Had the judge considered the matter appropriate for mediation or some other alternative dispute resolution process, see R. 5:4-2(h), he could have offered that suggestion prior to review. Once undertaking review and analysis, a final determination should be made. Further, if the motion record was found to include disputed material facts, the judge should have scheduled a plenary hearing. Accordingly, the order denying plaintiff's motion for emancipation is reversed.
We also caution the judge's apparent issuance of an advisory opinion regarding defendant's cross-motion for contribution, after finding her papers deficient. The court must not offer opinions on issues in the abstract or give advisory opinions. G.H. v. Twp. of Galloway, 199 N.J. 135, 136 (2009).
We have been advised that a subsequent hearing officer review resulted in an order emancipating the child. However, the effective date remains disputed. We remand this matter to the Family Part to enter an order fixing the effective date of emancipation as the date plaintiff filed this motion. Using this date, the order shall terminate plaintiff's obligation to pay child support and as necessary determine the amount, if any, of arrearages or overpayments, and order satisfaction of same.
The effective date should be the date of plaintiff's motion, not the date of graduation, because plaintiff was aware his child was graduating and waited to move for emancipation.
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Reversed and remanded. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION